The Writ of Certiorari: A Somewhat Less Powerful Tool (Part II)?

Sometimes the juiciest info is found in the comments. In October, I blogged about State v. Biddix—a Court of Appeals’ opinion that appeared to significantly limit the Court of Appeals’ certiorari authority under Appellate Rule 21. Even though a state statute specifically granted a criminal defendant the right to challenge his guilty plea by writ of certiorari, the Biddix court held that this statutory authority was trumped by Appellate Rule 21, which does not specifically authorize review of guilty pleas by certiorari. At the time, I expressed concern that Biddix represented a substantial chink in the armor of the writ of certiorari—a common law writ widely considered to be the most powerful tool in our appellate courts’ arsenal.

My feeling that something was not right about Biddix turned out to be an understatement. A few hours later, an anonymous NCAPB commenter pointed out in the comments to this blog what everyone else—including (cough, cough) yours truly—had overlooked: State v. Stubbs. Stubbs is an April 2015 Supreme Court opinion that addressed the interplay between Appellate Rule 21 and another criminal statute authorizing a more expansive certiorari review. A recap of Stubbs can be found here.

As reported in the comments to my first Biddix blog post, defense counsel in Biddix quickly asked the Court of Appeals to withdraw/reconsider its opinion in light of State v. Stubbs. The State’s response to the motion was a half-hearted mixture of mea culpa and no harm, no foul. The Court of Appeals withdrewBiddix on 23 October 2015.

Last week, the Court of Appeals’ newest batch of decisions produced a new opinion in Biddix.

The relevant facts for Biddix can be found in my prior Biddix blog post. In both the original and reissued opinion, the judges agreed that N.C. Gen. Stat. § 15A-1444 did not provide the criminal defendant with the right to pursue a traditional, statutory appeal under Appellate Rule 4. Instead, § 15A-1444 states that a criminal defendant seeking to challenge his guilty plea “may petition the appellate division for review by writ of certiorari.” The problem is that nowhere in Appellate Rule 21 has the Supreme Court specifically authorized the review of guilty pleas under § 15A-1444 by writ of certiorari. According to the Biddix majority, this discrepancy creates a conflict between Rule 21 and § 15A-1444 which prevents the appellate court from using Appellate Rule 21 to review guilty pleas by writ of certiorari. The Biddix majority held that the criminal defendant’s argument could only be reached if the Court of Appeals elected to use “Appellate Rule 2 to suspend the requirements of Rule 21 to issue the writ.” Appellate Rule 2 can only be invoked by the appellate courts in “exceptional circumstances” and “to prevent manifest injustice to a party”—neither of which the majority believed were present in Biddix.

The majority’s analysis under Appellate Rule 2 appears to be new to the reissued opinion. (I cannot be sure because the original Biddix opinion is no longer available) [Update: As of February 2017, the text of the original October 2016 opinion can still be found here]. If my memory is correct, the Biddix majority’s analysis of the issue changed to hold that while the Court of Appeals has jurisdiction to grant certiorari based on N.C. Gen. Stat. § 15A-1444(e), Appellate Rule 21 does not provide a procedure for granting review under § 15A-1444(e). Therefore, a party seeking review of its guilty plea under § 15A-1444(e) must convince the appellate court to use Appellate Rule 2 to suspend Appellate Rule 21 to reach the merits of the claim under N.C. Gen. Stat. § 15A-1444(e). (Similar reasoning is found in State v Ledbetter, No. COA 15-414 (N.C. Ct. App. Nov. 3, 2015), a recent Court of Appeals decision).

In practical terms, if you thought the standard for obtaining review by writ of certiorari was difficult, imagine the herculean showing that must be made when an Appellate Rule 2 standard is superimposed over the already demanding certiorari showing required by Appellate Rule 21! I am also curious how a federal habeas court would assess a state criminal statute that authorizes review of an issue by certiorari, but where the appellate courts decline to make certiorari review available in practice. See State v. Hart, 644 S.E.2d 201 (2007) (noting that if the Appellate Rules “are not applied consistently and uniformly, federal habeas tribunals could potentially conclude that the Rules are not an adequate and independent state ground barring review.”).

The good news is that this complex issue dividing the Court of Appeals may now be on the path to greater clarity. In light of State v. Stubbs, Judge Geer converted her prior concurring opinion in Biddix into a dissent. The Biddix defendant now has a right to take this fascinating issue to the North Carolina Supreme Court.

Judge Geer determined that Appellate Rule 21 does not limit the Court’s ability to issue writs of certiorari. She noted that the Supreme Court and the Court of Appeals have repeatedly used their writ of certiorari authority to review orders like the one in Biddix—without invoking Appellate Rule 2.

Moreover, Judge Geer believes that the Supreme Court’s resolution of a similar argument in State v. Stubbs controls the outcome in Biddix. In Stubbs, the Supreme Court was asked to determine whether the State had the right to request certiorari review of an order granting a motion for appropriate relief under N.C. Gen. Stat. § 15A-1422(c)(3). Section 15A-1422(c)(3) authorizes certiorari review of orders both granting and denying motions for appropriate relief. However, Appellate Rule 21 (as it existed at the time) only contemplated certiorari review for orders “of the trial court denying a motion for appropriate relief.” The State maintained in Stubbs that Appellate Rule 21 did not limit the Court’s authority to issue a writ of certiorari under § 15A-1422(c)(3)—notwithstanding the arguably inconsistent language. In addressing the Stubbs defendant’s argument that Appellate Rule 21 only authorized certiorari review of orders denying a motion for appropriate relief, the Supreme Court in Stubbs noted that Appellate Rule 1 requires that the Appellate Rules not “be construed to extend or limit the jurisdiction of the courts of the appellate division as that is established by law.” The Stubbs court acknowledged that “Rule 21 might appear at first glance to limit the jurisdiction of the Court of Appeals,” but held that “the Rules cannot take away jurisdiction given to that court by the General Assembly in accordance with the North Carolina Constitution.”

How did the Biddix majority distinguish Stubbs? Well, on the same day that the Supreme Court released its Stubbs opinion, it amended Appellate Rule 21 to specifically authorize certiorari review of orders granting motions for appropriate relief under § 15A-1422(c)(3). The order was effective immediately. The Biddix majority believed that this same-day amendment meant that the Stubbs analysis was controlled by the amended version of Appellate Rule 21—not the prior version of Rule 21, which only contemplated certiorari review of orders denying a motion for appropriate relief.

I am having trouble understanding the Biddix majority’s assertion that amended Appellate Rule 21 controlled the Supreme Court’s analysis in Stubbs. The Supreme Court in Stubbs both quoted and analyzed the certiorari issue under the prior version of Appellate Rule 21. If the amended version of Appellate Rule 21 controlled, it would have been unnecessary for the Supreme Court to discuss the conflict between the prior version of Appellate Rule 21 and § 15A-1422(c)(3).

The majority opinion also posits that the Supreme Court’s amendment to Appellate Rule 21 would have been “wholly unnecessary” unless the amendment was adopted to apply retroactively to the arguments in Stubbs. However, the contemporaneous amendment to Appellate Rule 21 may have been directed toward reconciling the text of Appellate Rule 21 with § 15A-1422(c)(3) (and ultimately, the Supreme Court’s decision in Stubbs). In other words, rather than leave in place a version of Appellate Rule 21 that “might appear at first glance to limit the jurisdiction of the Court of Appeals,” see Stubbs, perhaps the Supreme Court decided to amend Appellate Rule 21 contemporaneously to avoid confusion in future cases.

To be sure, I am pleased that the Biddix majority has taken the position in this reissued opinion that it has jurisdiction to consider the certiorari issue. The Biddix majority’s concern about Appellate Rule 21 not aligning with § 15A-1444 is also valid. In an ideal world, all statutory grants of certiorari authority and Appellate Rule 21’s text would be completely consistent. However, both Stubbs and Biddix demonstrate that the statute and the Appellate Rules do not always perfectly align.

I tend to think that the Supreme Court in Stubbs was sending a strong signal that in the event of a possible inconsistency between the Rules of Appellate Procedure and an act of the General Assembly regarding the Court’s power to issue certiorari, the North Carolina Constitution requires that the statute should control. I’m interested to see how the Supreme Court will deal with the Appellate Rule 2 issue now part of the reissued opinion.

For civil appellate practitioners, why is Biddix (a criminal appeal) so important? In a nutshell, the writ of certiorari has traditionally been used by our appellate courts to decide important appellate issues when the traditional right to appellate review is unavailable. In my original blog post, I noted several circumstances where certiorari is utilized by the appellate courts to review issues that are neither specifically contemplated by the language of Appellate Rule 21 nor a specific statute. While it is true that the Court’s certiorari authority is used only in exceedingly rare cases, when the Court is presented with a unique set of circumstances that begs for intervention, do we really want a restrictive reading of Appellate Rule 21 and the court’s certiorari power to leave our appellate courts powerless (or even less powerful) to act?

Which brings me to a bigger picture point: Is the power of the Court of Appeals (or the Supreme Court) to issue remedial writs limited to a specific Appellate Rule or even state statutes authorizing certiorari review of specific types of orders? [For example, there is no Appellate Rule or state statute specifically authorizing review of judicial settlement orders by writ of certiorari–even though the writ of certiorari has long been the method for doing so.]

Instead, what if the appellate courts’ writ authority is broadly derived from three independent sources: 1) statutes, 2) appellate rules, and 3) the common law?

While I’ve not done extensive research on this issue, it seems to me that the North Carolina Constitution broadly confers on the Supreme Court the immutable authority to issue “any remedial writs necessary to give it general supervision and control over the proceedings of the other courts.” North Carolina Const. Art. IV, Sec. 12 (emphasis added). While the Constitution does not specifically define the Court of Appeals’ writ authority, the Constitution gives that power to the General Assembly. The General Assembly, in turn, has granted the Court of Appeals broad powers to issue remedial writs:

The Court of Appeals has jurisdiction, exercisable by one judge or by such number of judges as the Supreme Court may by rule provide, to issue the prerogative writs, including mandamus, prohibition, certiorari, and supersedeas, in aid of its own jurisdiction, or to supervise and control the proceedings of any of the trial courts of the General Court of Justice, and of the Utilities Commission and the Industrial Commission. The practice and procedure shall be as provided by statute or rule of the Supreme Court, or, in the absence of statute or rule, according to the practice and procedure of the common law.

N.C. Gen. Stat. § 7A‑32(c) (emphasis added). I cannot think of any certiorari request that would fall outside of the General Assembly’s broad authorization to the Court of Appeals to grant any writ necessary to “aid [the Court of Appeals’] own jurisdiction, or to supervise and control the proceedings of any of the trial courts.” In other words, while statutes (like § 15A-1444 & § 15A-1422) and Appellate Rules (like Appellate Rule 21) might recognize specific instances in which the Court of Appeals’ certiorari authority may be utilized, those specific instances are not the exclusive circumstances in which certiorari power can be exercised by the appellate courts under § 7A-32(c). Under a broad reading of § 7A-32, the Court of Appeals’ certiorari authority would extend far beyond any specific statute or Appellate Rule 21 to also include the extraordinary writ powers long recognized by North Carolina’s common law.

A broad interpretation of § 7A-32 would also avoid the perceived conflict between Appellate Rule 21 and § 15A-1444 that troubled the Biddix majority. In other words, if Appellate Rule 21(a) is not an exclusive inventory of when certiorari can be issued, then Appellate Rule 21(b) through (f)’s procedures for seeking certiorari would apply equally to all applications for writ of certiorari–and there would be no need to invoke Appellate Rule 2.

In sum, I am uncomfortable watching the writ of certiorari lose its status as the most powerful tool in an appellate court’s arsenal. It seems problematic to adopt interpretations of Appellate Rule 21 that in some future case could leave our appellate courts powerless (or less powerful) to take an action clearly necessary to either prevent great harm to some worthy party or to protect our judicial system.

What are your thoughts on the reissued Biddix opinion? Do you believe our appellate courts have the authority to issue writs of certiorari in circumstances not specifically contemplated by Appellate Rule 21(a)? What about circumstances not contemplated by either Appellate Rule 21(a) or a specific statute? Should the Supreme Court adopt a limiting or expansive reading of the appellate courts’ authority to issue extraordinary writs when it decides Biddix? Let us know in the comments below.

–Beth Scherer

P.S. The Supreme Court issued a big Rule 54(b) decision on Friday. The impending holidays have us running behind, but a blog on that decision is in the works.

3 Responses to "The Writ of Certiorari: A Somewhat Less Powerful Tool (Part II)?"

As follow-up, the argument that the Appellate Rules can limit the jurisdiction of the appellate courts would appear to be foreclosed by Appellate Rule 1(c) which states that “These rules shall not be construed to extend or limit the jurisdiction of the courts of the appellate division as that is established by law.”

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